Jose GARCIA-JIMENEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 488 F.3d 1082

Opinion by Judge SILVERMAN; Dissent by Judge PREGERSON. ORDER Judges Silverman and Tallman voted to deny the petition for rehearing en banc and Judge Pregerson voted to grant it. No judge has made an en banc call. The opinion filed January 3, 2007, and appearing at 472 F.3d 679 (9th Cir.2007), is hereby amended to include a dissent by Judge Pregerson. Pursuant to General Order 5.3.a, an amended opinion showing that Judge Pregerson no longer joins the majority opinion and now dissents is filed contemporaneously with this order.

No subsequent petition for rehearing or petition for rehearing en banc may be filed as to the amended opinion. AMENDED OPINION SILVERMAN, Circuit Judge. The government charged petitioner Jose Garcia-Jimenez with being removable on account of, first, two prior criminal convictions occurring in the mid-1990s, and, second, a recent attempt to smuggle undocumented aliens into the country. Garcia-Jimenez’s criminal convictions occurred before Congress replaced the Immigration and Nationality Act’s waiver of deportation provisions with the more stringent cancellation of removal provisions.

Accordingly, he was entitled to apply for, and did receive, a waiver as to his convictions. The Immigration Judge, however, denied relief as to the alien smuggling charge. She applied 8 U.S.C. § 1229b(c)(6), which precludes cancellation of removal in cases where the alien has been granted a waiver of deportation. We hold today that § 1229b(c)(6) bars an alien from obtaining cancellation of removal if he has ever received a waiver of deportation, even if the waiver of deportation was granted in the same proceeding in which cancellation of removal is sought.

The statute prohibits an alien from receiving both waiver of deportation and cancellation of removal. Therefore, we deny Garcia-Jimenez’s petition for review. I. Background Garcia-Jimenez is a native and citizen of Mexico. He obtained temporary resident status in November 1988, and his status was adjusted to that of legal permanent resident on December 1,1990. On June 8, 1995, Garcia-Jimenez pled guilty to corporal injury of a spouse in violation of California Penal Code § 273.5(a). On March 27, 1996, he pled guilty to possession of cocaine in violation of California Health & Safety Code § 11350(a).

On May 27, 2000, Garcia-Jimenez came to the attention of the immigration authorities when he attempted to smuggle his sister-in-law and niece into the United States at the San Ysidro Port of Entry. On June 15, 2000, the former Immigration and Naturalization Service (“INS”) initiated removal proceedings against Garcia-Jimenez under 8 U.S.C. § 1182(a)(2)(A)(i)(I) & (II), charging him with removability on account of his committing a crime of moral turpitude (i.e., the domestic violence conviction) and a controlled substance violation.

On February 19, 2002, the INS also charged Garcia-Jimenez with removability under § 1182(a)(6)(E)(

i) arising out of the smuggling incident on May 27, 2000. Garcia-Jimenez conceded removability. Because he pled guilty to both state charges before Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-597, which abolished waiver of deportation under former § 212(

c) of the Immigration and Nationality Act (codified at 8 U.S.C. § 1182(c) (repealed 1996)) and instituted cancellation of removal, he was entitled to seek § 212(

c) relief as to those charges. See INS v. St Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding retroactive application of the Act’s bar to former § 212(

c) relief would have an impermissible retroactive effect on certain lawful permanent residents). The alien smuggling incident, however, occurred after IIRIRA’s enactment, so, to avoid removal based on that charge, Garcia-Jimenez had to seek cancellation of removal under 8 U.S.C. § 1229b(a). The IJ denied cancellation of removal, and ordered Garcia-Jimenez removed to Mexico. The Board of Immigration Appeals (“BIA”) affirmed, reasoning that § 1229b(e)(6) “explicitly states that an alien is ineligible for cancellation of removal if he has been granted relief under

section 212(c),” and thus “the Immigration Judge correctly found [Garcia-Jimenez] to be ineligible for cancellation of removal because he was granted relief under

section 212(

c) of the Act.” Garcia-Jimenez filed this timely petition for review. II. Jurisdiction The Immigration and Nationality Act ordinarily divests the court of appeals of jurisdiction to review any “final order of removal” against an alien who, like Garcia-Jimenez, has been found removable for committing a crime of moral turpitude or a controlled substance violation. 8 U.S.C. § 1252(a)(2)(C).

The Act, however, states that “[n]othing [herein] ... which limits or eliminates judicial review shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review.” Id. § 1252(a)(2)(D). The issue that Garcia-Jimenez raises in his petition is a question of law — whether § 1229b(c)(6) bars him from simultaneously obtaining both a waiver of deportation under § 212(

c) and cancellation of removal under § 1229b(a). Therefore, we have jurisdiction to review his petition. III. The Merits

Section 1229b(c)(6) provides that cancellation of removal is not available to: [a]n alien whose removal has previously been cancelled under this

section or whose deportation was suspended under

section 1254(

a) of this title or who has been granted relief under [§ 212(c)] of this title, as such sections were in effect before September 30,1996. Latching onto the word “previously,” Garcia-Jimenez argues that § 1229b(c)(6) does not apply to him because he was granted § 212(

c) relief in the same proceeding in which he sought cancellation of removal, not in a previous proceeding. Garcia-Jimenez misreads the statute. The plain language of the statute controls. See Flores-Arellano v. INS, 5 F.3d 360, 362 (9th Cir.1993) (applying the Act’s plain language; “[t]he provision is not ambiguous, nor does its plain language lead to absurd results or internal statutory inconsistencies.”).

Section 1229b(c)(6) mentions three forms of relief — cancellation of removal, suspension of deportation under § 1254, and waiver of deportation under the former § 212(c). Congress inserted the word “or” into § 1229b(c)(6) in such a way as to create three different classes of aliens, each of which is the beneficiary of one of those three forms of relief. And the word “previously” appears in the part of the statute that identifies the first class of aliens, but not the second or third. See § 1229b(c)(6) (disqualifying “an alien whose removal has previously been can-celled under this

section or ... who has been granted relief under [§ 212(c)]” (emphasis added)). We will not ignore such a clear distinction in the statute. That is, with respect to grants of § 212(

c) relief, § 1229b(c)(6)’s bar on further relief does not depend on when the alien received his waiver; it is sufficient if a waiver of deportation “has been granted.” § 1229b(c)(6). Indeed, we said as much in Maldonado-Galindo v. Gonzales, 456 F.3d 1064, 1067 (9th Cir.2006): The statute is not ambiguous. Congress’s language indicates as clearly as words can state that any receipt of § 212(

c) relief will foreclose [§ 1229b(c)(6)] relief: cancellation of removal is unavailable to “[a]n alien whose removal has previously been cancelled under this

section ... or who has been granted relief under [§ 212(c)].... ” Id. It is irrelevant that an alien may simultaneously apply for adjustment of status and § 212(

c) relief. The Eighth Circuit has come to the same conclusion. In Munoz-Yepez v. Gonzales, 465 F.3d 347 (8th Cir.2006), the petitioner argued that his procedural due process rights were violated when the immigration judge ruled that § 1229b(c)(6) barred him from simultaneously obtaining § 212(

c) relief and cancellation of removal. Id. at 350. The court held that “Congress intended to deny [cancellation of removal] to aliens who commit multiple deportable offenses. Therefore, it does not matter when the discretionary § 212(

c) relief is granted; it disqualifies the alien from [§ 1229b] relief for a second, post-IIRIRA offense.” Id. By enacting § 1229b(c)(6), Congress made its intention clear: an alien who has received § 212(

c) relief — at any time — cannot also receive § 1229b relief. Garcia-Jimenez was eligible for one form of relief or the other, but not both. IV. Conclusion The BIA correctly held that 8 U.S.C. § 1229b(c)(6) barred Garcia-Jimenez from seeking cancellation of removal. The petition for review is DENIED. . The Board of Immigration Appeals construed § 212(

c) to afford permanent resident aliens a discretionary waiver of deportation if they had lived in the country for seven consecutive years and had not been convicted of an aggravated felony. . Cancellation of removal is available to an alien who has been a lawful permanent resident for at least five years, has resided continuously in the country for seven years, and has no conviction for an expanded universe of aggravated felonies. 8 U.S.C. § 1229b(a).

The IJ determined that Garcia-Jimenez was not eligible for cancellation of removal as to his second conviction because his first conviction in 1995 for spousal abuse constituted a crime of moral turpitude, triggering IIRIRA’s new "stop-time” provision and ending his run of "continuous physical presence” in the United States. See § 1229b(d)(l) (“any period of continuous physical presence ... end[s] when the alien has committed an offense referred to in

section 1182(a)(2) of this title that renders the alien inadmissible”). Thus, when he was convicted for a controlled substance violation in 1996, Garcia-Jimenez could no longer meet the seven-year residency requirement. . We offer no opinion as to what "previously” means with respect to aliens who initially received cancellation of removal. . At issue in Maldonado-Galindo was whether § 1229b(c)(6) bars cancellation of removal for those aliens granted § 212(

c) relief before IIR-IRA's enactment. We held that, even if Congress did not "clearly indicate" in the statute that cancellation of removal is unavailable to an alien who received § 212(

c) relief before IIRIRA’s enactment, § 1229b(c)(6) does not have an impermissible retroactive effect. Id. at 1068.